J-E03005-18 2019 PA Super 118

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JASON ALLEN LIPPINCOTT Appellant No. 2057 EDA 2014

Appeal from the Order June 17, 2014 In the Court of Common Pleas of Northampton County Criminal Division at Nos: CP-48-CR-0003839-2012, CP-48-CR-0003840-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

CONCURRING OPINION BY STABILE, J.: FILED APRIL 15, 2019 I join the Majority’s well-reasoned opinion, but write separately to express my opinion that Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016), should be overruled in its entirety. Today, in conformity with the Ex Post Facto Clause,1 we hold that a law is unconstitutional as applied because it imposes increased punishment to an offense that pre-dated its effective date. This Court in Kizak affirmed a conviction where the defendant received a greater penalty under a statute whose effective date post-dated the defendant’s offense. The Majority tries to salvage Kizak as being

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distinguishable from this case upon the basis that this Court in Kizak was simply attempting to honor the legislature’s intent.

I would overrule Kizak in its entirety, because it is clear after today’s holding that no part of the Kizak opinion remains good law.2 The Majority, however, distinguishes Kizak because Kizak addressed a statute that expressly applied only to offenders sentenced after its effective date. Thus, according to the Majority, the Kizak decision honored the legislature’s intent.

To the extent the Majority’s distinction of Kizak implies that Kizak remains good law, I disagree. The statute at issue in Kizak, in providing for increased punishment to offenses that pre-dated it, directly violated the Ex Post Facto Clause as it was applied in that case. No statement of legislative intent could repair that constitutional infirmity.3 Furthermore, precedent from the United States Supreme Court strongly supports my position. In addition to Weaver v. Graham, 450 U.S. 24 (1981), analyzed in depth in the Majority Opinion, the Supreme Court in Peugh v.

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Commonwealth v. Muniz, 164 A.3d 1189, 1209-10 (Pa. 2017), cert. denied, 138 S. Ct. 925 (2018). The General Assembly’s stated intent did not prevent our Supreme Court from holding that SORNA’s registration requirements constituted criminal punishment.

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U.S., 599 U.S. 530 (2013), held that a change in the federal sentencing guidelines violated the Ex Post Facto Clause where the sentence range would have been 30 to 37 months when the defendant committed the offense, but was 70 to 87 months at the time of sentencing. Id. at 534. Thus, application of the guidelines in effect at the defendant’s sentencing created a significant risk of a higher sentence than the law in place at the time of the offense. Id. at 550.

Similarly, in Miller v. Florida, 482 U.S. 423 (1987), abrogated as stated in Peugh, 599 U.S. at 541 n.4, Florida’s sentencing guidelines specified a presumptive sentence of 3½ to 4½ years of incarceration when the defendant committed his offense on April 25, 1984. Id. at 424, 427. On May 8, 1984, the Florida Supreme Court proposed new guidelines, and the Florida legislature adopted those recommendations, to be effective on July 1, 1984.

Id. at 427. The new guidelines provided a presumptive sentence of 5½ to 7 years of incarceration for the same offense. Id. at 424. The defendant was convicted in August of 1984 and sentenced on October 2, 1984, under the guidelines that had taken effect on July 1 of that year. Id. at 427. The Florida Supreme Court held that “the trial court may sentence a defendant pursuant to the guidelines in effect at the time of sentencing.” Id. at 428 (emphasis added). The United States Supreme Court reversed that holding. Id. at 429.

Quoting Weaver, the Miller Court noted that a law is retrospective, for purposes of the Ex Post Facto Clause, if it “changes the legal consequences of

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acts completed before its effective date.” Id. at 430 (quoting Weaver, 450 U.S. at 31) (emphasis added).

As in Weaver, the Miller and Peugh Courts did not have occasion to address a law that had been enacted but had yet to take effect. Also like Weaver, the Miller Court appeared not to distinguish between the enactment of a law and its effective date: The law at issue in this case, like the law in Weaver, ‘makes more onerous the punishment for crimes committed before its enactment.’ Weaver, supra, 450 U.S., at 36, 101 S.Ct., at 968.

Accordingly, we find that Florida's revised guidelines law, 1984 Fla. Laws, ch. 84-328, is void as applied to petitioner, whose crime occurred before the law’s effective date. Id. at 435–36 (emphasis added).4 Nonetheless, I do not believe a law’s passage date provides fair warning of the applicable punishment under Weaver, Miller, and Peugh. See Peugh, 569 U.S. at 544 (noting that the Ex Post Facto Clause requires fair warning of the applicable punishment). To hold otherwise would replace fair warning with unfair speculation, because two people who commit identical offenses on the same day can receive different penalties if one is convicted

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and sentenced before the effective date5 but the other is not. In this scenario, I do not believe either offender has fair warning of the applicable punishment.

Both are at the mercy of the speed of the justice system, and the same is true for all persons whose offense falls between a law’s passage and its effective date.6 Thus, the passage of a law does not provide fair warning that all future offenses will be subject to harsher punishment. The Majority’s holding eliminates any uncertainty, and any concern about fair notice, by limiting the applicability of a greater penalty to offenses committed on or after its effective date.

Given the bright-line rule that the Majority correctly draws, Kizak is no longer good law. I would therefore expressly overrule Kizak in its entirety because it is abundantly clear that the outcome in Kizak could not happen after our holding today.7

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President Judge Emeritus Bender and Judge Bowes join this Concurring Opinion.

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